State of New York
Supreme Court : County of Monroe

- against -

Index No. 2002/4317

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

During a period of less than two years almost thirty years ago three young girls from poor neighborhoods in Rochester, New York, were kidnapped, raped and killed. Aside from the horror of the crimes themselves, these attacks stood out because all three victims had first and last names beginning with the same letter, and the bodies of all three were found in outlying communities with the same initial letter; the first victim, for example, was Carmen Colon, and her body was found in Churchville. These crimes were never solved.

A few years ago the producers of television shows that aired on the cable Discovery Channel approached the Rochester police with a proposal to broadcast a one-hour program on these so-called "double initial murders." The investigative files would be supplied to a former FBI criminal profiler, Robert Hazelwood, without any information on any suspects whom the police had identified. From information about the victims and the circumstances of the crimes themselves Hazelwood and a group of retired FBI personnel, The Academy, would attempt to generate a description of the assailant. This information would be supplied to the police department, to compare with any suspects and to suggest new avenues of investigation. In addition, it was hoped that broadcast of the show might elicit further leads from the public.

Hazelwood's conclusions were, in part, that Carmen Colon had likely been killed by someone she knew, a relative or acquaintance, and that her death was unrelated to the other two. As it happened, police had suspected an uncle of Carmen's, one Miguel Colon, and in 1991 they were pursuing him when he committed suicide.

Television is a visual medium, and the producers of the program asked the City police department if there were any photographs available of the suspect Colon. The file had been discarded after Colon's death, but police noticed that he had applied for a pistol permit in 1988. Pistol permit applications are stored in the Monroe County Clerk's office, so an officer contacted an employee of that office and asked for a photograph from Colon's application. It is clear from the affidavits supplied by the city that the officer furnished the clerk with significant identifying information in addition to the name.

The clerk, unfortunately, did not pull the 1988 application by the Miguel Colon whose niece was murdered. Instead, she took out a 1967 application by the plaintiff, another man named Miguel Colon with no connection at all with the double initial murders, or indeed any other crime. According to uncontradicted testimony from the officer, the clerk removed the photograph from the backing card which contained the information about the applicant and handed the photograph to him, telling him it did not need to be returned--"He's dead, anyway," she is reported to have said. At no time did the officer see the card itself.

The photograph was duly forwarded to the producers of the program, and when it aired the plaintiff's image was shown five times, as the likely killer of Carmen Colon who himself committed suicide in 1991. Another image was shown once, this time of a group which apparently included the suspect Miguel Colon; the source of this photograph is unclear and the details difficult to make out.

Plaintiff has sued the City of Rochester and the City Police Department, the County and the Sheriff's Department, the Discovery Channel, Film Garden Entertainment (the producers), and Hazelwood and The Academy Group, alleging defamation, use of his image for commercial purposes prohibited under the Civil Rights Law, and negligence. All of the defendants except for the Discovery Channel and Film Garden have moved for summary judgment. The Court holds that all defendants except the County of Monroe are entitled to summary judgment dismissing the complaint, and because summary judgment motions search the record the court grants summary judgment to the non appearing defendants.

The first question that must be determined is whether the program defames the plaintiff. The defendants have argued that it does not, because the program made it clear that the suspect Miguel Colon died in 1991, by his own hand. They maintain that no reasonable person could conclude that the Miguel Colon pictured, whom they knew to be alive, was the one suspected of killing Carmen Colon.

This is a plausible argument, but it does not consider the possibility that viewers listen selectively to programs such as the one at issue, and it involves questions balancing the impact of the image itself with the narration that are more properly questions for the jury. A case almost a century old, De Sando v New York Herald (89 App Div 492), provides some guidance in this question. The New York Herald had published a photograph of the plaintiff over a story about "Musolino the Famous Italian Brigand." The story claimed that Musolino was currently in Italy, but would be coming to America when "His Revenge is Complete."

The trial court had dismissed the complaint on a demurrer (essentially the same as a contemporary summary judgment motion), but the Appellate Division reversed. In doing so it rejected an argument strikingly similar to that raised by defendants here:

It is suggested *** that persons who knew plaintiff's real name and who read the article through would be led to the conclusion that the article does not refer to the plaintiff. These considerations may go to mitigate the damages, but they in no sense destroy the libellous character of the act in producing the plaintiff's photograph in connection with an article which is libellous per se and which refers to the photograph as that of the person to whom the article relates. It is pure assumption to assert that all who see it will read the article or that all who read it will be acquainted with the real name of the plaintiff. Many will look only at the picture and the head lines of the article and thus associate the man whose photograph is given with an article describing him as a bandit and a murderer (89 App Div, at 495).

The next question is that of the standard to be applied. Rights of free expression on matters of public interest must be balanced against those private interests protected by the law of defamation. When a private person is allegedly defamed in the course of the discussion of a matter of public interest, New York courts have barred action unless the defendants have acted with gross irresponsibility. The leading case is Chapadeau v Utica Observer-Dispatch (38 NY2d 196; see also, Balderman v American Broadcasting Companies, __AD2d__, 738 NYS2d 462 [4th Dept]):

We now hold that within the limits imposed by the Supreme court where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however, to warrant such recovery he must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties (38 NY2d, at 199)

(The municipal defendants have argued that their communication is also protected by a common law qualified privilege, but the better view is that the Chapadeau standard should be applied to all defendants; see, Konikoff v Prudential Insurance Company of America, 234 F3d 92, 101-102 [2d Cir].)

The burden is therefore on the plaintiff to present evidence, in admissible form, of a question of fact as to the defendants' failure to act with "due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." No such issues arise with respect to any of the media defendants. As for Robert Hazelwood and The Academy Group, it is clear from both the affidavits and from the program itself that they neither received information about possible suspects nor communicated anything except their psychological profile of the suspects. Hazelwood stated that he declines all information about suspects, for fear it would affect his profiling.

The producers of the program have not appeared, but it is also clear that both Film Garden and the Discovery Channel relied on the accuracy of the information supplied by the police. They requested a photograph of Miguel Colon, the suspect; and they had no reason to suspect that the photograph they received in response was anything other than what was requested. When reporters obtain information in the usual course from an official source, the mere inaccuracy of the information does not suggest irresponsibility (see, Hairston v Bancorp, 20 Media l Rep 1600, 1992 WL 368789 [NY Sup, Ciparick], at 1992 WL 368789, 4, and cases cited therein).

Amid the plaintiff's papers, which are replete with innuendo and irrelevancies, is a claim that the producers should have compared the police photograph with the other images of the suspect. There was only one other such image, however, and it is difficult to make out the faces of those represented. Furthermore, any differences in the images would likely have led to a rejection of the group photograph, because the provenance of the police photograph would surely have been more convincing than that of a family snapshot.

The municipal defendants are in a different position. There is no issue of fact as to the conduct of the Rochester Police Department, which served merely as a conduit for the request. The officer responsible supplied the identifying information to the clerk and like the media defendants was entitled to rely on the accuracy of the response.

The Clerk's office, however, failed utterly to check the files against the information supplied by the officer. Had this been done, the proper record would have been retrieved. (It was eventually furnished to the City during litigation and obtained by plaintiff's counsel pursuant to a FOIL request.) The court holds that there is a question of fact as to whether this failure was grossly irresponsible.

The sole remaining party, then, would be the County of Monroe. (The County correctly points out that the Sheriff, not the Sheriff's Department, is the party who must be sued; in any event, no conceivable cause of action lies against the Sheriff in this case.)

Because the Chapadeau standard mandates dismissal of all other claims, the court sua sponte will search the record and grant judgment to the Discovery Channel and Film Garden, even though both are nonappearing parties (Teller v Bill Hayes, Ltd., 213 AD2d 141, 144; Sciangula v Mancuso, 204 AD2d 708, 709; D'Argento v Village of Homer, 202 AD2d 883, 885). Thus, the defamation causes of action are dismissed as to all defendants except the County of Monroe.

The plaintiff's remaining causes of action may be dealt with summarily. There is no separate cause of action in negligence; "[u]nlike most torts, defamation is defined in terms of the injury, damage to reputation, and not in terms of the manner in which the injury is accomplished" (Morrison v National Broadcasting Co., 19 NY2d 453, 458, cited in Balderman v American Broadcasting Companies, supra, 738 NYS2d, at 470). Nor has the plaintiff stated a cause of action for violation of the Civil Rights Law § 51. That section speaks only of use for trade or advertising, and publication of images on newsworthy subjects or when reasonably related to those subjects is exempt:

Thus, it is clear that a Civil Rights Law §§ 50 and 51 claim does not lie where a plaintiff's photograph is used to illustrate a newsworthy article. There are two limitations: first, there must be a real relationship between the article and the photograph (see, e.g., Thompson v Close-Up, Inc., 277 App Div 848 ["no connection" between photograph and article on dope peddling]), and second, the article cannot be an advertisement in disguise (see, e.g., Beverley v Choices Women's Med. Ctr., supra, 78 NY2d, at 752-753 [calendar was advertisement in disguise]) (Messenger by Messenger v Gruner + Jahr Printing and Publishing, 94 NY2d 436, 444).

Plaintiff maintains that the program, when viewed with advertisements, shows an attempt to increase viewership in Rochester and among the Hispanic community. But this does not convert a news program into an advertisement; as the Court of Appeals has stated,

the fact that a publication may have used a person's name or likeness "solely or primarily to increase the circulation" of a newsworthy article--and thus to increase profits--does not mean that the name or likeness has been used for trade purposes within the meaning of the statute. Indeed, "most publications seek to increase their circulation and also their profits" (Stephano v News Group Publs., supra, at 184-185). Whether an item is newsworthy depends solely on "the content of the article"--not the publisher's "motive to increase circulation" (id., at 185; see also, Freihofer v Hearst Corp., supra, 65 NY2d, at 141) (Id., at 442).

DATED: Rochester, New York

June 26, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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